Legal Commentary

Probationer May Not Possess Material That ?Contains Nudity or That Depicts or Alludes to Sexual Activity or Depicts Sexual Arousing Material?

By Eugene Volokh

The Eighth Circuit has just set aside such a probation condition, imposed as part of a sentence for being a felon in possession of a firearm (though (?[a]pparently because Kelly had two sexual assault convictions? in addition to the felon-in-possession conviction).

As the court pointed out, judges have broad authority to impose probation conditions. This often including conditions that limit the exercise of what would be a constitutional right, if the subject hadn?t been a criminal. But restrictions on First Amendment-protected activity, including reading sexually themed material, must be justified by ?a particularized showing of the need for the condition in each case? ? a showing tied to the particular circumstances of this defendant. And beyond that, the court concluded, the ban on material that merely ?alludes? to sexual activity would be unconstitutionally broad:

The proscription on materials alluding to sexual activity, then, comprises not only materials that depicting sexual activity ?- which, by and large, are limited to video, still-image, or sculpture formats ? but also print materials, however benign and devoid of lascivious ethos, which make a passing reference to sexual activity.

Caught within the net cast by this phrase would be the Bible, with its ?Thou shalt not commit adultery? directive, see Exodus 20:14, and other references to copulation contained in abundance in the Old Testament, see, e.g., Genesis 19:30?36 (a story of Lot?s daughters ?laying? with their father and getting pregnant as a result); Genesis 38:13?24 (a story of Tamar trading sex with Judah for ownership of a goat); Genesis 38:8?10 (the sin of Onan, who ?spilt his seed upon the ground? rather than try to impregnate his brother?s wife, as his brother asked him to); numerous works of classical literature ? like Anne Frank?s The Diary of a Young Girl ? which Kelly could not even prescreen given the absence of sexual content rating system for books; and, most perversely, laws outlawing certain forms of sexual conduct and, for that matter, even this very opinion. The sweeping reach of this proscription is magnified by its strict-liability phrasing, which makes Kelly responsible for all materials in his possession, even if he has not read or looked at them. Worse, the rule would prevent Kelly from even possessing contraceptives, thereby threatening his constitutionally protected privacy right to decide ??whether to ... beget a child.??

Full post as published by The Volokh Conspiracy on November 22, 2010 (boomark / email).